H. Harrison Huster appeals from a Chancery Division judgment in favor of his former wife Hattie on her crossclaim in plaintiff's action to foreclose its mortgage on property owned by the Husters as tenants by the entirety. We are not concerned with the foreclosure proceedings which, in due course, proceeded to judgment and sale. The appeal on the crossclaim concerns the enforceability of a support agreement entered into between the parties. A proper understanding of the question requires some detailing of the background facts, chronologically developed.

I.

The Husters were married May 6, 1933. Three children were born of the marriage: Harrison, Jr., Brian and Diane. The parties separated January 28, 1954 and lived apart thereafter. On June 14, 1954 they executed a separation agreement. Article First recited that the matrimonial home in Madison, N.J., was owned by the parties as tenants by the entirety, and if sold by mutual agreement or after a divorce granted to either, the net proceeds were to be divided equally between them. Article Second read as follows:

"Husband will pay the monthly charges for reduction of principal of the presently existing mortgage on the home real estate at No. 42 East Lane, Madison New Jersey, the interest charges on said mortgage, the municipal taxes levied against said home real estate and the premiums for fire insurance covering said home real estate, totalling approximately $160. monthly.

Such payments by the husband shall continue as long as the parties continue to own said home real estate as tenants by the entirety as governed by Article First supra."

And Article Third provided, in pertinent part:

"Husband will pay to the wife for her support and maintenance during the joint lives of the parties, whether or not they continue to be husband and wife, so long as wife does not remarry, and in addition to any sums paid by husband under Article Second, supra, the sum of $150. per month in semi-monthly instalments of $75. on the first and fifteenth days of each month.

In the event that the home real estate at 42 East Lane, Madison, New Jersey, be sold as described in Article First, supra, husband will pay wife as additional support and maintenance the monthly sum of $160. which he had paid for mortgage interest, principal, taxes and insurance as provided in Article Second."

Article Fourth required Huster to pay his wife $300 a month for the support and maintenance of the children of the marriage, and as each reached majority or was emancipated, the monthly payment was to be reduced by $100. Mrs. Huster was to have the custody of the children under Article Fifth, with reasonable visitation rights accorded the husband, who agreed to provide such funds as were reasonably necessary in addition to those set forth in Article Fourth to complete their education at schools and colleges determined by the parties to be suitable. By Article Eighth Huster was to pay all reasonable legal fees and expenses contracted by his wife in connection with the agreement.

The agreement also recited that it had voluntarily been entered into by the parties on the advice and under the supervision of their respective, independently selected counsel, each of the parties declaring that the agreement was "in all respects fair, equitable, just and reasonable."

Despite the existence of the separation agreement, the wife on July 11, 1955 filed a complaint in the Union County Juvenile and Domestic Relations Court asking the court "to inquire into the marital status for the purpose of attempting to salvage her marriage; in lieu thereof to make an order upon defendant to adequately support his family consistent with the terms of the [separation] agreement noted above and in line with his net earnings." That court, on September 28 following, entered a temporary order of $75 a week for the support of the family. This was reduced to $65 a week on March 1, 1956. The $65 payments were continued by order entered September 19, 1956, which also directed the husband to pay a reasonable amount for the upkeep of the exterior of the marital home.

On December 15, 1958 Huster filed a complaint for divorce on the grounds of his wife's desertion and adultery. Plaintiff insurance company instituted its foreclosure against the Husters a month later. Mrs. Huster crossclaimed against her husband in that action, alleging that he had failed and neglected to make the monthly payments on the bond and mortgage and to pay municipal taxes, as provided in the separation agreement, resulting in a default and foreclosure. She feared the loss of her home because of her inability to pay the mortgagee's claim or to purchase the property at foreclosure sale. Claiming that her husband was financially able to make the payments and that his failure to do so was willful and malicious, she demanded judgment directing that he pay the amount due the mortgagee, and also demanded compensatory damages of $50,000 and punitive damages in the same amount. By way of answer Huster contended that the crossclaim was not actionable between husband and wife and violated R.S. 37:2-5. The foreclosure proceeded to judgment and sale on October 19, 1959.

Huster had meanwhile fallen into arrears under the existing Juvenile and Domestic Relations Court support order, and been held in contempt. He had moved to cancel

the arrearages and to vacate the contempt order, as well as for a change in custody and a modification of support payments. The Juvenile and Domestic Relations Court refused to cancel the arrearages and ordered Huster to purge himself by paying the $1,957.43 support money then due. It referred the applications for a reduction in support and a change in custody to the Chancery Division for hearing in connection with the pending divorce proceedings. On December 21, 1959 the Chancery Division judge sitting in matrimonial matters, after taking testimony on the husband's case, vacated the order of the Juvenile and Domestic Relations Court requiring Huster to pay $65 support weekly, and relieved him until further order "from paying any sum whatsoever to the defendant [Mrs. Huster] for her support, inasmuch as the three children of the marriage are no longer in the home of the defendant." Mrs. Huster had refused to take the stand, claiming she was not ready to proceed because her newly engaged counsel had not had time to prepare. The trial judge pointed out that he had allowed her a counsel fee so that she could engage counsel, that she had engaged in persistent delay after dismissing her former attorney, and that the court had been obliged to write her that the matter was going to proceed. After considerable colloquy, the court granted substituted counsel's request to be relieved of any further responsibility in the case and continued the matter to February 2, 1960.

We note that at the December 21, 1959 hearing Huster testified that he was then under order of the Union County Juvenile and Domestic Relations Court order to pay his wife $65 a week. The court also had before it the separation agreement of June 14, 1954, admitted in evidence. When the court took the testimony of Mrs. Huster's witnesses on April 25, 1960 (the hearing had been further adjourned to that date), her present counsel moved that the Juvenile and Domestic Relations Court order be reinstated. The motion was denied.

On April 28, 1960 the trial court entered judgment nisi dismissing Huster's cause of action for desertion, granting him a divorce on the ground of his wife's adultery, and awarding him custody of the infant children. Mrs. Huster appealed to this court. The appeal did not question the vacating of the Juvenile and Domestic Relations Court support order, nor did it in any way implicate the separation agreement. We affirmed, Huster v. Huster , 64 N.J. Super. 29, decided November 22, 1960.

While the appeal was pending, and on June 10, 1960, another Chancery Division judge pretried the crossclaim feature of the foreclosure action, granting leave to Mrs. Huster to amend her crossclaim by adding a demand for specific performance of Article Third of the separation agreement, for an accounting with respect to payments not made under the provisions of Articles Second and Third, as well as for counsel fees. The amendment was to be filed and served within ten days, but this was not done until October 3, 1960.

In his answer to the amended crossclaim, Huster contended that Mrs. Huster had knowingly abandoned the terms and conditions of the separation agreement by filing a complaint in the Juvenile and Domestic Relations Court for support and maintenance, and that court had assumed jurisdiction and entered support orders from time to time. Furthermore, the matrimonial judge had specifically denied her any further support and maintenance, and she had taken no appeal from that order. Accordingly, she had made an election of remedies and was estopped from asserting any claim for specific performance of the support provisions of the separation agreement. Answering that part of the amended crossclaim demanding an accounting as to payments not made under the provisions of Article Second relating to mortgage principal and interest, taxes and fire insurance, Huster contended that he and Mrs. Huster were equal co-owners; that because of straitened circumstances he was financially unable, as she well knew,

to prevent the foreclosure and sale of the property; and notwithstanding the fact that she was financially able from her separate estate to protect her interest in the property, she had failed to do so. The issue of election of remedies was advanced at the trial, as it is on this appeal.

On December 5, 1960, and before the judgment nisi had become final, the Chancery Division judge who had heard the crossclaim entered judgment (1) dismissing Mrs. Huster's claim for punitive damages; (2) awarding her $2,560, representing the sum of $160 a month for a period of 16 months beginning in August 1958, during which period Huster had failed to meet his obligation under Article Second of the separation agreement; (3) awarding her $1,500, representing the sum of $150 a month for a period of ten months beginning in January 1960, during which period Huster failed to meet his obligation under Article Third; (4) directing specific performance by Huster of Article Third by paying crossclaimant $150 a month beginning November 1, 1960, and finally, (5) directing him to pay crossclaimant her taxed costs, together with a counsel fee of $300.

On this appeal Huster contends that the Chancery Division judge improperly granted specific performance of the support and maintenance provisions of the separation agreement when the matrimonial judge had theretofore, in the divorce proceedings, denied Mrs. Huster any support -- in other words, she had made an election of remedies and was estopped from asserting any claim under the agreement. Appellant also argues error in granting specific performance of the agreement under the facts and circumstances of the case, not only as to support and maintenance payments allegedly in arrears and those falling due after January 1, 1960, but also as to alleged arrearages in the carrying charges on the foreclosed marital home. Further, error is claimed in awarding crossclaimant a counsel fee.

Appellant has not specifically argued that R.R. 4:13-1 and R.R. 4:95-3 should bar Mrs. Huster's claim, at least as to payments up to the entry of final judgment in the divorce action on January 9, 1961. However, the substance of those rules finds reflection in ...

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